The European Court of Human Rights’ Kick Into Touch

On April 9, 2024, the European Court of Human Rights (ECtHR) ruled on three applications concerning the fight against climate change and the positive obligations of the signatory states of the European Convention on Human Rights (ECHR) in this respect. Two of the applications were declared inadmissible (Duarte Agostinho and Others v. Portugal and 32 Other States and Carême v. France). The third, Klimaseniorinnen v. Switzerland, was a great success. This blog post  analyzes the Carême decision in which the Court declared inadmissible an application brought by a former mayor of a French town on the grounds of incompatibility ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (§ 88). In my view, this is an ill-developed decision, which could dangerously imply a regression in environmental matters.

This decision presents three interesting points in particular.

Firstly, the Carême ruling is the most overlooked of the three climate decisions handed down on April 9, 2024. Because this decision is insufficiently argued, a few thoughts on it deserve to be shared. Secondly, this rejection is a reminder of the arduous road ahead for the protection of environmental human rights. Finally, the decision cruelly points out the absence of a right to a healthy environment recognized by the Convention. Given that climate change is one of the world’s most pressing environmental problems, this ruling serves as a reminder that little has yet been achieved in terms of the human right to a healthy, stable climate. Despite the success of the KlimaSeniorinnen case, there is still a long way to go.

Lenten Request Reminder

Mr. Carême was mayor of Grande-Synthe, France from 2001 to 2019. Grande-Synthe is a town in Northern France that is particularly exposed to climate-related risks. On November 19, 2018, Mr. Carême, acting on his own behalf and in his capacity as mayor, asked the French government to take all useful measures to curb national greenhouse gas (GHG) emissions, adopt all necessary legislative and regulatory initiatives to “make climate priority mandatory”, prohibit all policies likely to increase GHG emissions, and implement immediate measures to adapt to climate change in France. The national authorities failed to respond, and Mr. Carême then appealed to the Conseil d’Etat (French Supreme Administrative Court) on grounds of excess of power.

The petition to the Conseil d’Etat highlighted the future risks associated with climate change, and the need for immediate and ambitious measures to progressively limit GHG emissions. It should be noted that even that first petition to the national court claimed a violation of Articles 2 and 8 of the ECHR. In its decision of November 19, 2020, the Conseil d’Etat ruled that the claims were subject to judicial review. With regard to the interest of the applicants, the Conseil drew a distinction between the case of the town and that of Mr. Carême. For the judges, the municipality had an interest, while Damien Carême did not. Two further decisions by the same court followed (July 1, 2021 and May 10, 2023), in which the Council ruled that, while the government had adopted additional measures to address climate change, the available evidence did not provide a sufficiently credible guarantee that the GHG emissions reduction plan would be achieved. The Council enjoined the government to take additional measures before June 30, 2024.

Mr. Carême appealed to the ECtHR in 2022, alleging that the measures taken by France to combat climate change were insufficient, thereby violating his rights under Articles 2 and 8 of the Convention. On May 31, 2022, the Chamber in charge of the case relinquished jurisdiction in favor of the Grand Chamber. Two years later, the Court declared the application inadmissible for lack of interest on the part of the applicant.

In the Court’s View, an Individual, as a Citizen, Does Not Have an Interest in the Matter

In their defense, the French government argued that the Conseil d’Etat’s decision of July 2021 had already deprived the claimant of victim status. The government explained that the decision had satisfied the claims formulated by the claimant before the domestic courts by admitting the admissibility of the application lodged by the town. The ECtHR agreed, once again denying Mr. Carême the status of victim (§76-81).

The ECtHR explained that it ”sees no reason to depart from the conclusions reached by the Conseil d’Etat as to the hypothetical nature of the risk linked to climate change with regard to the applicant…” (§ 80). While it is likely that climate change affects individuals differently depending on their place of residence, living conditions and state of health, for the Court, the applicant does not show the existence of a serious and specific threat to his health and property (§ 77, 79 & 82). And, to follow, ”the applicant did not justify an interest giving him standing to act on the sole ground that his current residence was in an area likely to be subject to flooding by 2040…there was nothing to indicate what the applicant’s residence would be in the years to come, a fortiori in 20 years or more, so that his interest appeared to be affected in too uncertain a manner...” (§78, 79 & 81). Having moved to Brussels in May 2019, Mr. Carême no longer owns nor rents property in Grande-Synthe. The only link is the fact that his brother lives there. The Court recalled that, according to its established case law, adult siblings cannot rely on the family life component of Article 8, unless they can demonstrate the existence of additional elements of dependence, which is not the case here (§ 81) (See Mamasakhlisi v. Georgia & Russia 2023).

The Court thus explained that the applicant had not demonstrated the existence of a direct and sufficiently serious interference with his rights protected by Article 8 (§ 83). He had not established the existence of a direct link between, on the one hand, the State’s omissions in reducing GHG emissions and, on the other, his personal life. Furthermore, he had not shown that he had already suffered restrictions in the enjoyment of his home, or that he was personally concerned by the future risks associated with climate change. The argument that he suffered from asthma as a result of carbon dioxide pollution was also rejected by the Court (§ 87), despite its flexible case law on this point (Lόpez Ostra v. Spain, 1994; Sciavilla v. Italy 2000; Solyanik v. Russia, 2022).

As a Politician, Monsieur Carême is no Victim Either

Mr. Carême had also submitted his application in his capacity as former mayor of Grande-Synthe. The Court rejected this ground too (§ 85), referring to its established case law (Assanidzé v. Georgia 2004 ; Slovenia v. Croatia 2020). In its view, decentralized authorities exercising ”public functions,” irrespective of their degree of autonomy from central bodies are regarded, as ”governmental organizations” not entitled to apply to the Court under Article 34 of the Convention. Consequently, the Court concluded that the applicant is not entitled to lodge an application with the Court, or submit a complaint to it, on behalf of this town.

Defending the Environment at all is Not Acceptable to the Court Either

In response to Carême’s application, the French Government took the view that he was seeking to have the ECtHR review the measures taken by France to limit GHG emissions. It was clear, explained the government representative, that Carême’s action was not aimed at protecting his individual rights, but at defending the general interest. For the defendants, it was an actio popularis. The Convention, explained the government, does not provide for an in abstracto review of domestic legislation or measures, including in environmental matters (Caron v. France 2010). The right of individual petition cannot be intended to prevent the possible occurrence of a future violation (Aly Bernard & al. Greenpeace Luxembourg v. Luxembourg 1999).

The ECtHR agreed with the defendants on this point and explained that the applicant could not claim, under any of the headings of Article 8, to be a victim for the purposes of Article 34 of the Convention. The court noted that, having regard “to the fact that anyone, or almost anyone, could have a legitimate reason to feel some form of anxiety about the future risks of the harmful effects of climate change, to find that the applicant could claim such victim status would make it difficult to distinguish the defense of interests pursued by way of actio popularis – which is not recognized in the Convention system – from situations where there is a compelling need to ensure the individual protection of an applicant against the harm that the effects of climate change could cause to the enjoyment of his fundamental rights” (§ 84-86). Here, the Court takes up its strictest line of jurisprudence on the applicability of Article 8, pointing out that the State’s obligations under this provision only arise “if there is a direct and immediate link between the situation at issue and the applicant’s home or private or family life” (Ivan Atanasov v. Bulgaria, 2010). Environmental damage must have a direct impact (Luginbühl Swiss 2006) or direct repercussions on the applicant’s right to respect for his or her home, family or private life, or directly affect the applicant’s home, family or private life (Solyanik v. Russia, 2022). A general deterioration of the environment is not enough. There must be an adverse effect on a person’s private or family sphere.

Obscure Statements on the Exhaustion of Remedies

On this point, the ECtHR seems to be sowing a certain amount of confusion, creating uncertainty in particular with regard to future actions. In the absence of any individualization of his grievances, the Court expresses, indirectly, that it is doubtful whether the applicant has duly exhausted domestic remedies (§ 87 & 88). The Court also justified its rejection by noting that the Grande Synthe case is still pending before the Conseil d’Etat. Which implicitly expresses that the case has then not exhausted domestic remedies (§ 86). In my view, these are contradictory statements. Either, in the view of the judges, the applicant was unable to provide sufficient proof of the individual and direct nature of his grievance, in which case it is hard to see what this has to do with the question of exhaustion of domestic remedies. Or the Court considers that, since the Grande Synthe case is still pending because the government has not fully executed what it was enjoined to do in 2021, Mr. Carême would not have exhausted the remedies in France either. However, the Conseil d’Etat itself stated back in 2020 that Mr. Carême’s personal petition was inadmissible for lack of interest in acting. So what exactly does the ECtHR mean here? It’s hard to understand its comments, which are obscure, to say the least, and even contradictory. The Court confuses the personal request of  Carême – whose application was already rejected in 2020 – and the case of the city of Grand Synthe, which is still pending.

Conclusions

In the meantime, Mr. Carême is suffering a denial of justice: the Conseil d’Etat dismissed his action for lack of interest to act in 2020. The French government nevertheless argued in its response to the petition that he has not exhausted domestic remedies. How can one not feel a little lost in the face of such confounding arguments? What recourse will Carême have in France when the highest administrative court already rejected his action more than 3 years ago?

Two possibilities could open up, but neither seems particularly viable. One could read here an invitation from the French government for Mr. Carême to lodge a new application under domestic law, for example, with the Constitutional Court. But on what basis, given that the Conseil d’Etat has already ruled that there are no grounds for accepting violations of the ECHR with regard to Mr. Carême?

Alternatively, one could read between the lines and interpret that the ECtHR itself invites Mr. Carême to start all over again and base a new application on the violation of Article 6 of the Convention on the right to a fair trial.

In the process, the ECtHR also rejected the claims of the individual victims in the Duarte Agostinho and KlimaSeniorinnen cases, on the grounds that they had no interest as victims. A way, unfortunately, of reaffirming its least progressive environmental jurisprudence. But, let us at least keep in mind the success of the Verein KlimaSeniorinnen’s decision and its future positive consequences on European climate justice.